Publication Date

Publication Information

Source Publication

93 Marquette Law Review 545 (2009)

Abstract

One measure of a society is how it treats those with little power, those who have suffered from problems not of their own choosing. Surely victims of crime fit into this category, and society has not often given them what they desire and need. Though they garner far less sympathy, perpetrators of crime may also be vulnerable to forces beyond their control, including physical and mental disabilities, childhoods marked by abuse and neglect, and incompetent attorneys who fail to fulfill constitutionally mandated standards. The criminal justice system attempts to address deficiencies in the representation criminal defendants receive in part through its appellate process. Following the exhaustion of state court postconviction review, prisoners in state custody can petition for relief in federal courts by applying for a writ of habeas corpus. Congress attempted to restrict access to federal courts for habeas relief with the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). This Article explores how representative federal courts have responded to that legislation. AEDPA’s limitations on habeas relief for state prisoners have been quite successful in some ways; nevertheless, petitioners claiming ineffective assistance of counsel have met with more success in circuit and district courts than anticipated. Despite AEDPA, courts have expanded Strickland v. Washington’s holding beyond an honest reading of the original case. This expansion, I argue, is not unrelated to AEDPA itself. First, AEDPA ignores that the writ of habeas corpus is rooted not only in statute but also in the text of the Constitution itself. Second, AEDPA’s drafters assumed that case precedent binds lower courts as statutory law does; therefore, they believed AEDPA would confer greater authority upon Supreme Court precedent than these cases already possess. It does not. These problems with the original legislation have led federal courts, including the Supreme Court, to expand the class of successful petitioners who claim ineffective assistance of counsel.